Dioxin parties praise judge

Published 7:00 pm, Friday, March 26, 2004

After spending Friday in tears of frustration, Kathy Henry says she understands another delay is necessary. "Its extremely disappointing, but I feel the judge is looking out for our best interests," she said.

On the first anniversary of Tittabawassee River dioxin contamination litigation, Saginaw County Circuit Court Judge Leopold Borrello moved the date for deciding class action status from April 6 to June 9 at 9 a.m.

The suit was filed against The Dow Chemical Co. by Henry and her husband, Gary, along with 162 other owners of property along the Tittabawassee River. The group claims their property was made worthless when the Michigan Department of Environmental Quality notified them it is contaminated with dioxin deposited there by Dow operations. They also want Dow to fund a trust to monitor their health, which they believe may be jeopardized by exposure to the toxin.

If the case is certified as class action, more than 2,000 property owners and an unknown number of people who have lived within flood plain boundaries since 1984 could join.

The fifth adjournment of a class hearing date was decided after Dow asked for a chance to respond to witness testimony submitted by plaintiffs a week ago. Borrello had said an April hearing date would stand, regardless of actions that would have to be taken before then if Dow was to have its wish. "Guaranteed," he said of the date. "Period." Previously, dates had been scheduled for November, December, January and February and all had been postponed.

In the most recent order he said, as he has many times throughout the proceedings, that he has to be fair to both parties.

Dow had offered witness testimony in its defense of the certification, and plaintiffs chose to respond with testimony from their experts. That was a surprise to Dow, which had asked earlier in the case if there would be such information and was told there would not, spokesman Scot Wheeler said.

Borrello said plaintiffs should have the right to include additional support in their reply, but agrees Dow also should be able to depose and challenge it.

Wheeler said the decision is "an indication that he is being thoughtful about this and providing all parties an opportunity to present their case and in a fair manner."

Borrello mentioned at an earlier hearing that if the court does not thoroughly address all details in its proceedings, decisions, such as the class decision, could be easily challenged on appeal.